The
130-page Second Amended Complaint alleges that Defendants, a
group of interrelated individuals and companies, perpetrated
a pattern of fraud and other acts on apartment construction
projects around the country. (Docs. 49; 49-1). Plaintiffs are
single-purpose entities that fund apartment complex
construction projects. (Doc. 49 at ¶¶ 15-24, 3 n.
1). They allege Defendants George Albertelli and his son
David Albertelli (collectively, the
“Albertellis”) provided bribes to an official
from Plaintiffs' parent company to secure inside
information and $202, 696, 588.38 in construction contracts.
(Doc. 49 at ¶¶ 50, 78-79, 86, 116 - 123). Each
Plaintiff contracted with either ACI or Westcore to build
eight apartment complexes in five states:

• Continental 245 Fund LLC and ACI for a project in
Lexington, Kentucky (the “Lexington Project”);

• Continental 298 Fund LLC and ACI for a project in
Savage, Minnesota (the “Savage Project”);

• Continental 306 Fund LLC and ACI for a project in New
Braunfels, Texas (the “New Braunfels Project”);

Federal
Rule of Civil Procedure 8(a)(2) states that a pleading
must contain a short and plain statement of a claim showing
that the pleader may have relief. Rule 8(a)(2)'s purpose
is to “give the defendant fair notice of what the claim
is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly,550 U.S. 544, 555 (2007) (internal
punctuation omitted). “Each allegation must be simple,
concise, and direct.” Fed.R.Civ.P. 8(d)(1).

Fraud
allegations are subject to heightened pleading standards
under Federal Rule of Civil Procedure 9(b), which
requires a party to “state with particularity the
circumstances constituting fraud.” Generally, this
occurs where the pleading alleges

(1) precisely what statements were made in what documents or
oral representations or what omissions were made, and

(2) the time and place of each such statement and the person
responsible for making (or, in the case of omissions, not
making) same, and

(3) the content of such statements and the manner in which
they misled the plaintiff, and

Rule
9(b) “serves an important purpose in fraud actions
by alerting defendants to the precise misconduct with which
they are charged and protecting defendants against spurious
charges of immoral and fraudulent behavior.”
Id. at 1370-71 (internal quotations omitted).
Although it imposes a heightened pleading standard, the
Eleventh Circuit has cautioned that “Rule 9(b) must not
be read to abrogate [R]ule 8 . . . and a court considering a
motion to dismiss for failure to plead fraud with
particularity should always be careful to harmonize the
directives of [R]ule 9(b) with the broader policy of notice
pleading.” Friedlander v. Nims,755 F.2d 810,
813 (11th Cir. 1985). Courts have found requisite
particularity in a pleading that lacked specifics but
presented sufficient description to apprise defendants of the
allegations against them. SeeSeville Indus.
Mach. Corp. v. Southmost Mach. Corp.,742 F.2d 786, 791
(3d Cir. 1984) (list containing fraud allegations and nature
of statements found to meet the Rule 9(b) threshold,
even though precise words were not alleged); see
alsoBrooks, 116 F.3d at 1371
(“alternative means are also available to satisfy the
rule.”). Though “[i]t is certainly true that
allegations of date, place or time [are traditional indicia
of particularity] . . . nothing in the rule requires
them.” Seville Indus. Mach. Corp., 742 F.2d at
791.

Under
Federal Rule of Civil Procedure 12(b)(6), a court
may dismiss a pleading for failure to state a claim upon
which relief can be granted. The Twombly-Iqbal
plausibility standard guides such dismissals. This standard
requires a plaintiff to allege sufficient facts “to
raise a reasonable expectation that discovery will reveal
evidence” to support a claim. Twombly, 550
U.S. at 556. The court must accept all factual allegations in
a plaintiff's complaint as true and take them in the
light most favorable to the plaintiff. Pielage v.
McConnell,516 F.3d 1282, 1284 (11th Cir. 2008). This
acceptance is limited to well-pleaded factual allegations.
La Grasta v. First Union Sec., Inc.,358 F.3d 840,
845 (11th Cir. 2004). Alleging
“the-defendant-unlawfully harmed me” is
insufficient. Iqbal, 556 U.S. at 677. “Nor
does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.” Id.
(internal modifications omitted).

DISCUSSION

Defendants
argue that nearly all the forty-four counts in the Second
Amended Complaint should be dismissed. Some arguments apply
to more than one count. The Court will address each.

Count 1
alleges that Defendants violated the RICO Act by perpetrating
several schemes to defraud Plaintiffs on construction
projects across the country. (Doc. 49 at ¶¶
62-236). Counts 2 and 3 incorporate the entire pleading with
Count 1 to allege Defendants conspired to violate
Florida's RICO Act and did so. (Doc. 49 at ¶¶
237-57). Defendants argue these counts should be dismissed
because they do not satisfy Rules 8(a) or 9(b). The Court
agrees.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;First,
the 76 pages of allegations to support Count 1 do not
constitute short or plain statements under Rule
8(a)(2). Although Count 1's allegations are complex,
Plaintiff must still satisfy the pleading requirements.
“While a complaint containing RICO claims is often
required to be somewhat lengthier than other complaints, the
assertion of RICO claims does not in itself excuse a
plaintiff from satisfying the ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.